*Ref. Prelim. ruling “Bergspecht” (OGH)

After the very confusing Wein&Codecision, in which the Austrian Supreme Court (OGH) found that ads bearing an opponents brand (Adv+) violate Austrian trademark law, the court in the Bergspecht case approached the ECJ concerning ads that don’t (Adv-).

Furthermore the OGH brought forward questions on the likeliness of confusion depending on the position of the (Adv-) advertisement .

In its Wein&Co decision the OGH found that Ads displayed above the search results (Top Ads) are to be seen as part of the search results[!] (ergo: Keyword Buying).
In Bergspecht the court refers to Top Ads as “advertisement being a part of and/or not clearly labelled as advertisement“.